The opinion of the court was delivered by
We granted Shanna Fridays petition for review of the Court of Appeals decision affirming her conviction and sentence for second-degree unintentional murder stemming from the beating of Jeny Deshazer. The issues on appeal, and our accompanying holdings, are as follows:
1. Did the prosecutor commit misconduct during her argument? Yes, but harmless error.
2. Did the district court err in refusing to instruct the juiy on self-defense? No.
3. Did the district court err in instructing the jury on aiding and abetting? No.
4. Did the district court err in excluding specific evidence of a witness’ plea bargain? No.
5. Did cumulative error deny Friday a fair trial? No.
6. Does the identical offense sentencing doctrine require reversing and remanding for resentencing? No.
7. Did the district court err in including Friday’s prior convictions in her criminal history score without their being proved to a jury beyond a reasonable doubt? No.
We therefore affirm the district court and the Court of Appeals panel.
Facts
On February 2, 2008, Deshazer was found dead in a bathtub in
The night before Deshazer s death, he got together at his home with Jerod Buffalohead, Jarvis Jones, and defendant Friday. Buf-falohead and Jones arrived around 4:30 p.m., and Friday arrived around 5 p.m. All four drank alcohol together throughout the evening. Shortly after arriving, Buffalohead left and returned around 8:45 p.m.
At one point, Friday got into a verbal altercation with Deshazer. Their argument never became physical, and they eventually cooled down.
Shortly after Buffalohead returned to Deshazer’s home, a physical altercation began. Buffalohead, Friday, and Jones each offered different versions of the episode that resulted in Deshazer s death.
Jerod Buffalohead
According to Buffalohead’s testimony for the defense, he heard arguing when he returned to the mobile home around 8:45 p.m. Somebody told Buffalohead that he owed Deshazer money, so Buf-falohead offered to pay Deshazer. But Deshazer said Buffalohead did not owe him anything. While Buffalohead was getting ice, “a fight started” between Friday and Deshazer. Buffalohead testified:
“I’m not real sure how the fight started, but I heard a slap, I heard a thud on the ground and—
[[Image here]]
“ . . . [w]hen I heard all that, I turned around and Jeny [Deshazer is] on, is on, not on top of her—I don’t know if they fell, I don’t know—
[[Image here]]
“. . . I don’t know if they tripped, but I pulled [Deshazer] off of [Friday].”
After Buffalohead pulled Deshazer from Friday, he sat Deshazer in a chair and Friday momentarily left the room. When she returned, she again argued with Deshazer. According to Buffalohead, “Jeny had a small bottle and I think that was plastic, but he threw it and it was, it landed in between 'em or he threw it on the ground.”
Jones continued to punch Deshazer s face until Buffalohead pulled him away. When Deshazer then stood up from his chair and started to go after Jones, Buffalohead threw a blanket over De-shazer to calm him down. Deshazer tripped over the blanket; then Buffalohead and Jones picked him up and put him back in his chair. After Buffalohead asked Friday if she had called for help, he left to go to his parents’ house.
Shanna Friday
According to Friday s statements to police, at some point in the evening Buffalohead became angry at how Deshazer was treating Friday. So Buffalohead and Jones began beating Deshazer while he was sitting in a chair. They eventually threw a blanket over his head. Friday then punched Deshazer three times in the face, with Buffalohead and Jones moving out of her way. During the beating, Deshazer “fought with his mouth” by “talking shit.” According to Friday, Jones hit Deshazer with an ashtray, but she repeatedly denied anybody hit Deshazer with a bottle.
After tire physical altercation ended, Friday gave Deshazer water, some pills, and a blanket. She also tried to wipe him off. When she offered to call the police or an ambulance, he declined. Friday then lay on tire couch and fell asleep. She awoke in the middle of the night and noticed Deshazer stumbling from one end of the home to the other. She also saw excrement. Friday apparently went back to sleep and left around 8 a.m. Before she left, Friday asked Deshazer if he was doing OK and if he wanted her to call the police or an ambulance. Deshazer responded from the bathroom that he was OK and did not want Friday to call anyone for help.
According to Jones’ testimony for the State, before Buffalohead returned to the home Deshazer said that Buffalohead owed him money. Friday then encouraged Deshazer to tell Buffalohead this when he came back. Buffalohead then walked in and asked, “Tell me what?” So Friday told Buffalohead that Deshazer thought Buf-falohead owed him money. Buffalohead then stood over Deshazer, and Deshazer “let the matter go.”
Jones had little recollection of the remaining events because he testified he was drunk and had blacked out from the alcohol. The next thing Jones remembered was people yelling. He saw Buffa-lohead hit Deshazer five or six times while Deshazer was seated in a chair. While Buffalohead was the only person Jones saw hit De-shazer, Friday was egging Buffalohead on by saying, “That’s what you get, that’s what you get.” Buffalohead then threw a blanket or rug over Deshazer’s head.
Jones soon passed out again. When he awoke at 2:30 a.m., Jones saw Deshazer moaning in his chair with his head back. Deshazer’s face and chest area were bloody. Jones then saw Deshazer “slump” out of his chair and crawl to his bedroom. Jones left, intending to return to his own home, but he ended up drinking with Deshazer’s neighbor. At dawn, Jones left the neighbor’s home and returned to Deshazer’s where he fell asleep in a back bedroom.
Finding the body and the police investigation
Later that morning Jim Vincent arrived at Deshazer’s home. Vincent could not find Deshazer and left. He returned an hour later and asked Nancy Kelch to look for Deshazer. Kelch found him dead in his bathroom.
When police arrived, they found broken glass—including the neck of a whiskey bottle covered in blood and a broken ashtray— in Deshazer’s home. DNA on the broken ashtray and on the neck of the broken bottle matched Deshazer, while DNA on the bottle mouth matched Buffalohead. The police also found several items covered in blood, including a comforter and pillow. They further noticed a vast amount of blood, including significant amounts on Deshazer’s recliner, on his floor, and in his bathroom.
The State eventually charged Friday with one count of unintentional reckless second-degree murder in violation of K.S.A. 21-3402(b). At trial, in addition to presenting jones’ testimony, the State played a video recording of Friday’s interview with the police.
The jury convicted Friday of the charge. This offense is a severity level 2 person felony, and the district court sentenced her to 174 months’ incarceration. The Court of Appeals affirmed in State v. Friday, No. 101,806,
Additional facts will be provided as necessary to the analysis.
Analysis
Issue 1: The prosecutor did not commit reversible error.
Friday argues the prosecutor committed misconduct in her closing argument and the error is reversible. The State concedes the conduct was questionable but argues the error was harmless.
Standard of review
We have said that review of prosecutorial misconduct claims involves a two-step process. The court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we have said that the court must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial. State v. Marshall,
For years we have considered several factors in analyzing this second step: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming na
Since 2004, this court has also demanded that any prosecutorial misconduct error meet the “dual standard” of both constitutional harmlessness and statutory harmlessness to uphold a conviction. See State v. Tosh,
Under the constitutional harmless error analysis defined in Chapman,
“the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that tire error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward,292 Kan. 541 , Syl. ¶ 6,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012).
Under die harmless error analysis defined in K.S.A. 60-261, the test is equally clear. The court “determine[s] if there is a reasonable probability that die error did or will affect the outcome of the trial in light of the entire record.”
Under both standards, die party benefiting from the error— here, allegedly the State—bears the burden of demonstrating harmlessness. State v. Herbel,
Discussion
The prosecutor’s statement in rebuttal closing argument about which Friday complains asked tire jury to give Deshazer his dignity back.
*1033 “Murder takes away a lot of things. The obvious, it takes a life. It takes a father from his children, it takes a brother from a brother. It takes a grandfather from grandchildren, but it takes a whole lot more, and in this case it took away Jerry Deshazer s dignity. He has been called in this courtroom any number of things, without die ability to defend himself. He has been called a mean drunk; he has been called an old man; he has been called an obnoxious mouthy alcoholic.
“And then if it’s not, if wasn’t bad enough, you have the total loss of dignity in the way he was found. A house that he obviously keeps very neat, covered with his own blood, with his own fecal matter. All of the neat tilings that he had knocked over as he stumbled bleeding through that house, and then ultimately having to have you, on this big screen in this courtroom, a picture of him in the bathroom with his pants pulled down and almost exposing his genitals. Blood all over his face, his face swollen. You wouldn’t even know what he looked like before this. Because that wasn’t Jerry Deshazer in that tub, not the one that everyone knew. And what can happen here in this courtroom? A verdict of guilty can return to that man the dignity he lost on February 1st.” (Emphasis added.)
Friday contends the argument diverted the jury from its duty to decide the case based on the evidence and the controlling law, attacked her exercise of her right to trial, and was meant only to inflame the passions of the juiy. The State responds the comment rebutted defense counsel’s statements during closing argument but orally conceded to us that the comments were “questionable.”
Under the first step of our analysis we decide whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. And we do not allow a prosecutor to comment on irrelevant facts regarding the impact of a crime on the victim or the victim’s family. State v. Stano,
This conduct diverted the jury from its “ ‘duty to decide the case based on the evidence and the controlling law.’ ” State v. Raskie,
With the prosecutorial misconduct established, we turn to the second analytical step. See Marshall,
We recently held that when the constitutional and nonconsti-tutional error clearly arises from the very same acts and omissions, we logically begin with our harmlessness analysis of the constitutional error. See Herbel,
In turning to our constitutional error analysis, we review the factors upon which Friday relies to argue reversal and remand to the district court. Per Tosh, these are gross and flagrant conduct and prosecutorial ill will. See
In determining whether prosecutorial misconduct was gross and flagrant, among the tilings we have considered are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules. See, e.g., State v. Brown,
Based on these standards, we agree with the Court of Appeals panel that the prosecutor’s comments were not gross or flagrant nor motivated by ill will. The comments constituted 1 page of about 30 total pages of closing argument by the State. We also recognize the prosecutor was, at least in part, attempting to rehabilitate De-shazer’s reputation after defense counsel attacked it in closing argument. See Marshall,
In continuing our constitutional harmlessness analysis, we address the State’s argument that there is no reasonable possibility the misconduct contributed to the verdict. See Ward,
Issue 2: The district court correctly refused to instruct the jury on self-defense.
Friday argues that the district court should have granted her request to instruct the jury on self-defense. Primarily through Buf-falohead’s testimony, she contends she presented sufficient evidence to warrant such an instruction. The State essentially re
The trial judge held there was insufficient evidence: “I don’t think we can argue that anybody believed she was in imminent danger.” And the Court of Appeals panel essentially agreed, concluding Friday was at least a coaggressor in mutual combat and that the evidence failed to demonstrate she had a subjective belief her use of such deadly force was necessary to defend herself from an imminent use of force by Deshazer. We agree no self-defense instruction was warranted.
Standard of review
In analyzing a preserved jury instruction issue on appeal, we implement a stair-step process. As we recently explained in State v. Plummer,
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, die court should use an unlimited review to determine whedier the instruction was legally appropriate; (3) then, the court should determine whedier there was sufficient evidence, viewed in the light most favorable to the defendant or die requesting party, Fiat would have supported die instruction; and (4) finally, if the district court erred, die appellate court must determine whedier die error was harmless, utilizing die test and degree of certainty set forth in State v. Ward,292 Kan. 541 ,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012).”
There is no dispute the self-defense instruction issue was appropriately raised and preserved for appellate review. We jointly consider whether the instruction was legally appropriate and, if so, whether the evidence would support giving it.
Discussion
Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. State v. McCullough,
Continuing with Plummer steps two and three, particularly determining whether the instruction was legally appropriate, we acknowledge that the elements to establish the right to use deadly force in self-defense are codified at K.S.A. 21-3211. That statute states:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.”
We have recognized that K.S.A. 21-3211 sets out a two-part test.
“The first is subjective and requires a showing that [Friday] sincerely and honestly believed it was necessary to kill to defend herself or others. The second prong is an objective standard and requires a showing that a reasonable person in [Friday’s] circumstances would have perceived the use of deadly force in self-defense as necessary. [Citation omitted.] “ (Emphasis added.) McCullough,293 Kan. at 975 .
For Fridays contention that Buffalohead’s testimony supports giving the instruction, she points out he stated:
“I’m not real sure how the fight started, but I heard a slap, I heard a thud on the ground and'—
[[Image here]]
“. . . [w]hen I heard all that, I turned around and [Deshazer is] on, is on, not on top of her—I don’t know if they fell, I don’t know—
[[Image here]]
“ . . . I don’t know if they tripped, but 1 pulled [Deshazer] off of [Friday].” (Emphasis added.)
Buffalohead further testified that after they sat Deshazer in a chair, Friday left the room. After this bréale in the action, Friday reentered the room and began to argue with Deshazer again. Buf-falohead testified Deshazer had a small bottle that he threw and it landed in between them “or he threw it on the ground.” Friday
We agree with the Court of Appeals panel that Friday was at least a coaggressor in mutual combat. As we have explained:
“The doctrine of self-defense cannot excuse a killing done when the defendant willingly engaged in mutual combat unless tire defendant has withdrawn in good faith and done everything in tire defendant’s power to avert the necessity of the Idling. [State v. Barnes,263 Kan. 249 , 266,948 P.2d 627 (1997)]. This rule does not destroy the right to self-defense in all mutual combat cases; but for self-defense to justify tire killing, the defendant must be acting ‘solely for the protection of [the defendant’s] own life, and not to inflict harm upon [tire defendant’s] adversary.’ State v. Burgess,245 Kan. 481 , 487,781 P.2d 694 (1989) (quoting 40 Am. Jur. 2d, Homicide § 142).” (Emphasis added.) McCullough,293 Kan. at 975-76 .
This court has defined mutual combat as “ '[o]ne into which both the parties enter willingly or voluntarily; it implies a common intent to fight, but not necessarily an exchange of blows.’ ” State v. Coop,
“If the parties fought by mutual consent the circumstances of who committed the first act of violence was immaterial; and, so long as each combatant persisted in his original determination to vanquish his antagonist the aggressions were mutual. A resistance which has for its real object the securing of an opportunity to mangle the assailant is not legal self-defense.” McNeil v. Mullin,70 Kan. 634 , 637,79 P. 168 (1905).
When the evidence is viewed in the light most favorable to Friday, not only does it clearly reveal that she and Deshazer engaged in mutual combat but also that she failed to withdraw in good faith and do everything in her power to avoid killing Deshazer. McCullough,
We further agree with the district court’s refusal to instruct, and the panel’s affirmation of that refusal, because of a lack of imminent danger to Friday. As the panel pointed out, she never ex
Accordingly, the district court correctly denied Fridays request for the self-defense instruction as being factually inappropriate on this record.
Issue 3: The district court correctly instructed the jury on aiding and abetting.
At trial, Friday objected to the aiding and abetting instruction because she alleged insufficient evidence justified giving it. The trial court overruled her objection. Friday now changes her argument to contend the instruction was erroneously given because it is a logical impossibility to aid a person with the intent to further an unintentional crime. The State briefly responds that State v. Garza,
Standard of review
We start by acknowledging that “[wjhere a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review applies.” State v. Ellmaker,
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, tire appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.”
Discussion
The aiding and abetting statute in effect at the time of De-shazer’s beating, K.S.A. 21-3205(1), provided that “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Friday particularly contends that aiding and abetting is a specific intent crime; it cannot be applied to reckless second-degree murder because it is logically impossible to aid and abet a reckless act. Cf. State v. Engelhardt,
Friday admits—as the State argues—that in Garza,
We reversed. After reviewing caselaw from other jurisdictions, we recognized that “ ‘two persons act in concert when “one . . . engages in conduct" and the other intentionally aids him [or her] in that conduct.’ ” Garza,
Per Garza, Friday unquestionably aided and abetted Deshazer’s fellow attackers. She admitted punching Deshazer in the face several times. Buffalohead testified that Friday hit Deshazer over the head with a bottle, while Jones testified that Friday was encouraging Buffalohead to strike Deshazer. We agree with the Court of Appeals panel that Friday participated in the beating of Deshazer or at least encouraged Buffalohead and Jones in their beating of him, ultimately leading to his death. Friday,
But Friday asks this court to reject Garza as wrongly decided and to instead adopt the reasoning in State v. Shannon,
Friday argues that the Shannon rationale—a person cannot specifically intend to commit an unintentional crime—should apply to her situation because, like attempt, aiding and abetting is a specific intent crime. See State v. Becker,
At the time of Friday’s offense, the aiding and abetting statute provided that a person “is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” K.S.A. 21-3205(1). Under this statute, obviously the aider or abettor must intentionally assist the principal. And it is true we have recognized that for an aider to assist a principal in carrying out a specific intent crime, the aider must possess the “same specific intent to commit the crime as the principal.” See Becker,
We therefore conclude the aiding and abetting jury instruction was both factually and legally appropriate, and the district court did not err in giving it. See Williams,
Issue 4: The district court did not err when it excluded specifics of Buffalohead’s plea bargain.
Friday argues that the district court erroneously excluded certain information about Buffalohead’s plea bargain. Friday was allowed to ask Buffalohead whether he had entered a plea as a result of the attack on Deshazer but was prevented from asking any specifics about the charge to which he pled. She contends this improperly limited her ability to thoroughly cross-examine a witness and also violated her right of confrontation.
Standard of review
We begin by recognizing that when reviewing a district court decision to admit or exclude evidence, we use a multistep analysis. State v. Shadden,
Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard, Shadden,
For the second step, we determine which rules of evidence or other legal principles apply. The district court’s conclusion is reviewed de novo. Shadden,
Here, we are asked to review the exclusion of certain details of Buffalohead’s plea bargain, which is generally reviewed for abuse of discretion. See State v. Sharp,
To the extent the district court’s evidentiaiy exclusion infringed upon a defendant’s constitutional right to confront witnesses—as Friday alleges—we exercise de novo review. See State v. White,
Discussion
Before opening statements, the State moved to prevent the defense from discussing the specifics of Buffalohead’s plea bargain. The prosecutor stated:
“The defense is planning on calling Jerod Buffalohead, the codefendant, who the Court is well aware has [pled] and been sentenced. Our objection would be getting into the fact that he—I don’t know if he wants to get into that he [pled], but I don’t think getting into what he [pled] to is proper. It’s going to be prejudicial because it shows a different charge than what [Friday is] charged- with. ~We can’t get into the fact that she was made the same plea offer, and actually was even made a better plea offer than Jerod 'Buffalohead was made, and we can’t do that, so I don’t think it’s fair to get into what it is that he [pled] to. It’s prejudicial to the State. That’s basically our request.” (Emphasis added.)
The district court noted that Buffalohead was being called by the defense and not the State. So it concluded that any information about the charge to which Buffalohead pled was not relevant or, if so, its relevance was outweighed by the prejudice to the State. The court elaborated on this limitation by telling Friday, “[Y]ou can ask him if he pled to a crime as a result of this offense,” but prohibited the defense from discussing the elements. When the defense asked Buffalohead on direct examination if he had pled “as a result of this case,” Buffalohead responded affirmatively.
At the outset, like the Court of Appeals panel we reject Friday’s request for de novo review. Friday called Buffalohead as her witness and does not explain how his testifying on her behalf implicated her right to confrontation and entitled her to de novo review. For as we have held: “The primaiy purpose of the Confrontation Clause is to give the accused the opportunity for cross-examination
And like the panel, when applying the abuse of discretion standard to the district court’s evidentiary ruling, we hold there was no abuse. Generally, when the State calls an accomplice as a witness, the defendant is allowed to cross-examine about the plea agreement to help the jury understand the witness’ potential motivations for testifying. But we allow the district court to limit the inquiries. See Sharp,
Because Buffalohead was not the State’s witness, but Friday’s, any defense concern that the jury receive adequate information about his potential motivations for testifying is greatly diluted, if not eliminated. Friday simply does not explain how the specifics of Buffalohead’s pleading “as a result of this case” are probative of his credibility as her own witness. See State v. Richmond,
We hold Friday has not met her burden of showing the district court abused its discretion in disallowing her inquiry into the details of Buffalohead’s plea bargain.
Issue 5: The cumulative error doctrine does not apply to a single trial error.
Friday argues that even if no single error at trial is sufficient to require reversal and remand, the cumulative effect of errors nevertheless deprived her of a fair trial. But the only error was in the prosecutor’s closing argument, which we determined was harmless. We agree with the State and the Court of Appeals panel that without more error to accumulate, the error remains harmless. See State v. Houston,
Issue 6: The identical offense sentencing doctrine does not apply because involuntary manslaughter is a lesser included offense of reckless second-degree murder.
Standard of review
Whether Kansas’ identical offense sentencing doctrine applies is a question of law to which we apply de novo review. Sandberg,
Discussion
After the Court of Appeals panel released its decision in Friday, we rejected dris identical argument in State v. Bridges,
“ ‘Thus, in [State v.] Gregory[,218 Kan. 180 , 182-83,542 P.2d 1051 (1975)], we held that involuntary manslaughter is a lesser degree of second-degree murder and is therefore a lesser included crime under K S.A. 21-3107(2)(a). We explained that while it appears murder and manslaughter are different crimes, “ ‘they involve but one crime and are only degrees of felonious homicide.’”218 Kan. at 183 (quoting Warren on Homicide § 83, pp. 415-16).’ ” Bridges,297 Kan. at 1021 (quoting Cheever,295 Kan. at 258 ).
Issue 7: Friday’s prior convictions may be included in her criminal history score without requiring a jury to prove their validity.
For Friday s last argument, she contends the district court violated her rights under the Sixth and Fourteenth Amendments to the United States Constitution by relying on her criminal history score to increase her sentence. Specifically, she contends that before her prior convictions could be used, they were required to be reproven to a jury beyond a reasonable doubt. Friday acknowledges we have previously rejected this position, and she presents it strictly to preserve her federal review. See, e.g., State v. Baker,
Affirmed.